Sunday, February 06, 2011

Case o' The Week: An Unwelcome Valentine - Smith and Fourth Amendment Seizures

Not a big Valentine fan?

Neither are we -- particularly when the
Valentine at issue is a bad Third Circuit decision imported into the Ninth, with a "seizure" analysis that erodes Fourth Amendment protections for our indigent clients. United States v. Smith, 2011 WL 339209 (9th Cir. Feb. 3, 2011), decision available here.

Players: Hard-fought appeal by D. Nev. AFPD Jason Carr and Defender Franny Forsman, decision by Judge Gould.

Facts: Smith walked in front of a cop’s car in a high-crime neighborhood. Id. at *1, *4. The cop hit the siren, pulled over, and told Smith to stop and come stand in front of the car. Id. at *1. Smith turned and asked, “Who, me?” or “What for?” Id. The cop repeated the command for Smith to come in front of the car. Id. Smith later testified (see holding below), and the cop’s account differed. The cop testified that Smith ran, tripped, and when the cop caught up Smith admitted having a gun. Id. Smith was charged with § 922(g). The district court didn’t resolve conflicting versions of the facts, but held that under either story Smith wasn’t seized so suppression wasn’t warranted. Id. at *2. Smith entered a conditional plea and appealed the denial of the suppression motion

(Ed. note: this was the D. Nev. and Smith was permitted a conditional plea – if this was in the ND Cal, Smith would have had to run a stipulated facts bench trial to preserve this appeal, and would have lost the third acceptance level as a result).

Issue(s): “[ ] Smith challenges the decision of the district court to deny his motion to suppress a firearm that was recovered from his person by a police officer. We must decide whether Smith’s actions constituted submission to a police officer’s show of authority, thereby triggering the Fourth Amendment’s requirement that the officer have reasonable suspicion before effectuating a seizure.” Id. at *1.

Held:We hold that Smith was not seized until after he fled the presence of a police officer, and that Smith’s flight under the circumstances gave the officer the reasonable suspicion required to effectuate a seizure.” Id. at *1. “Smith’s Fourth Amendment rights were not violated by the attempted stop, even if the officer did not have reasonable suspicion, because the attempted stop was not a seizure for Fourth Amendment purposes.” Id. at *2. “By his own testimony, Smith did not yield to the officer’s commands. Smith turned toward the officer, asked some questions, took a few steps towards the patrol car, but then backed away. Smith asked if he was under arrest, and [the cop] told him ‘no.’ When the officer continued to issue commands, Smith turned and ran. Like the suspect in Hodari D. who ‘was not seized until he was tackled,’ Smith was not seized when he initially hesitated and engaged in a short verbal exchange with [the cop]” Id. at *3. “Because Smith did not submit to the officer’s show of authority, and because he was not otherwise coerced or physically forced to submit, Smith was not seized within the meaning of the Fourth Amendment during his initial encounter with the officer.” Id.

Of Note: “Submission to the cop’s show of authority” will be the threshold issue for suppression cases involving flight. In Smith, the Ninth unfortunately adopts the Third’s regrettable analysis on the issue from United States v. Valentine, 232 F.3d 350 (3d Cir. 2000). Id. The result? The more aggressive a cop’s initial bluster with our clients (even without cause to stop), the better the chance of quick flight, and the more likely a suppression motion will falter. Cops and the defense bar instantly understand the real-world impact of Valentine: Smith, sadly, does not.

How to Use: Judge Gould concedes that “[t]here may be circumstances where a person’s flight has a perfectly innocent and reasonable explanation” that would still permit a suppression motion. Id. at *4. Closely read Smith’s Section III before running that theory, though: not exactly a generous view of Fourth Amendment seizures.

For Further Reading: The best article on conditional pleas is thirty years old. See Conditional Guilty Pleas, 93 HVLR 564 (1980). Here’s a suggestion for law students looking for a Note subject: unwarranted disparities among federal USAOs in their approach towards conditional pleas. Start with the blog for contrasting examples. See posts here. Take a look at how the PROTECT Act and the freeze on conditional pleas unfairly chill appellate rights. See, e.g., United States v. Espinoza-Cano, 456 F.3d 1126 (9th Cir. 2006). Run a couple of FOIA requests by U.S. Attorney’s offices on their policy and numbers of conditional pleas permitted. And send us a copy when published – it’ll earn you a blog shout-out.

Picture of cupid from .

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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